State Consumer Disputes Redressal Commission
Manager Future Generali India ... vs Sh. Balak Ram. & Anr. on 3 May, 2021
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 63/2019
Date of Presentation: 19.02.2019
Ordered reserved on: 22.04.2021
Date of Order : 03.05.2021
......
The Manager Future Generali India Insurance Company Ltd. SCO
78-79, 2nd and 3rd Floor, Sector 17-C Chandigarh, through its Legal
Manager, 3rd Floor Kailash Building, Kasturba Gandhi Marg, New
Delhi.
...... Appellant/Opposite party No.1.
Versus
1. Sh.Balak Ram S/o Sh. Bardu Ram R/o Village Ganana, Post
Office Bhararighat, Tehsil Arki, District Solan, H.P.
......Respondent No.1/ Complainant.
2. The Branch Manager, The Jogindera Central Co-operative Bank
Ltd., Branch Bhararighat, Post Office Bhararighat, Tehsil Arki,
District Solan, H.P.
......Respondent No.2/ Opposite party No.2
Coram
Hon'ble Ms. Sunita Sharma, Presiding Member
Hon'ble Mr. R.K. Verma, Judicial Member
Whether approved for reporting?1
For Appellant : Mr.Amit, vice Mr.Chandan Goel,
Advocate.
For Respondent No.1 : Mr.O.C.Sharma, Advocate.
For Respondent No.2 : None.
Mr.R.K.Verma, (Judicial Member) :
O R D E R :-
1. This appeal has been preferred against order dated 22.12.2018 passed by District Consumer Disputes Redressal Forum, Solan, whereby complaint filed by the complainant 1 Whether reporters of the local papers may be allowed to see the order? Manager, Future Generali India Ins.Co. Ltd. Vs.Balak Ram & Anr. F.A. No.63/2019 under section 12 of the Consumer Protection Act,1986 (hereinafter called as the Act) was partly allowed and the Opposite Party No.1 was directed to make payment of Rs.5,02,807/- along with interest @ of 9% per annum from the date of filing of complaint till payment. The Opposite Party No.1 was further directed to pay a sum of Rs.50,000/- towards mental harassment etc. and Rs.5000/- as litigation charges.
2. It would be apposite to mention here that the parties will be referred, as have been arrayed before the District Forum.
3. Brief facts, as averred in the complaint, are that the complainant had applied to the Opposite Party No.2 for grant of house loan to the tune of Rs.10,00,000/- which was sanctioned by the latter. In order to secure this loan, the opposite Party No.2 also got the house of the complainant insured with the opposite Party No.1 for a sum of Rs.10,00,000/- for the period from 17.06.2016 to 16.06.2026. The complainant spent a sum of Rs.15 lacs on the construction of this house. On 25.12.2016, the house of the complainant was totally damaged due to heavy rain fall. Intimation about this loss was given by the complainant to the opposite parties as well as to the local revenue agency. The opposite party No.1 had appointed surveyor who visited the spot on 16.01.2017 for verification of loss. The surveyor asked 2 Manager, Future Generali India Ins.Co. Ltd. Vs.Balak Ram & Anr. F.A. No.63/2019 the complainant to get the loss assessed from civil engineer. Accordingly, the complainant got the loss assessed from civil engineer Sh.Ravinder Mishra, who assessed the loss at Rs.6,74,102.43. After completion of all codal formalities, the complainant lodged his claim with the opposite Party No.1.On 23.03.2017, the Opposite Party No.1 offered him a sum of Rs.3,51,000/- by ignoring the loss assessed by the civil engineer. Even, this amount was not paid by the Opposite Party No.1. Upon this, the complainant served legal notice dated 29.12.2017 upon the Opposite Party No.1, but the latter failed to comply with this notice. Hence, this complaint.
4. The Opposite Parties have resisted and contested the claim of the complainant. The Opposite Party No.1 in its reply has taken various preliminary objections against the maintainability of this complaint. On merits, it is not disputed that the house of the complainant was insured with it for a sum of Rs.10,00,000/-. It is also not disputed that the said house was damaged. However, it is denied that the complainant had spent a sum of Rs.15 lacs on the construction of this house. According to the Opposite party No.1, the policy issued to the complainant was Standard Fire and Special Perils Policy which covered special perils. The house of the complainant was damaged due to heavy rain fall which is not a specified peril under the policy. Therefore, the 3 Manager, Future Generali India Ins.Co. Ltd. Vs.Balak Ram & Anr. F.A. No.63/2019 Opposite Party No.1 is not liable to indemnify the complainant. It is further pleaded that the loss was occurred on 25.12.2017, but the intimation of the incident was given on 13.01.2017 and no explanation was given for the delay caused in giving intimation. The surveyor on physical verification has also found that the building was under construction. Therefore, there was breach of the terms and conditions of the policy. As per the investigation conducted by the surveyor/investigator, the retention wall was not adequately built which caused damage to the residential house due to heavy rain /continuous seepage of water. The defective design or workmanship or use of defective material was also the cause of damage. Loss was assessed to the tune of Rs.3,51,000/- by the surveyor subject to terms and conditions of the insurance policy. Since the policy does not cover the cause of loss, therefore, the claim of the complainant was repudiated vide letter dated 30.12.2017. Hence, there was no deficiency of service on the part of the answering opposite party and as such this complaint is liable to be dismissed.
5. The Opposite Party No.2 in its separate reply has admitted that house loan was sanctioned in favour of the complainant and the answering opposite party got the house of the complainant insured in order to secure the loan. The loan account of the complainant has become NPA. In case 4 Manager, Future Generali India Ins.Co. Ltd. Vs.Balak Ram & Anr. F.A. No.63/2019 compensation is awarded to the complainant the same be ordered to be paid to the Opposite Party No.2. There is no deficiency of service on the part of the answering opposite party.
6. No rejoinder was filed by the complainant.
7. The parties led oral as well as documentary evidence in support of their respective cases.
8. The learned District Forum below after hearing the parties and going through the records partly allowed the complaint as aforesaid.
9. Feeling aggrieved by the impugned order dated 22.12.2018 passed by the learned District Forum, the Opposite Party No.1 has filed the instant appeal on the ground that the learned District Forum while passing the impugned order has failed to appreciate the pleas set up and evidence led on behalf of the opposite party No.1 in true prospective and as such the same is not sustainable and deserves to be set aside.
10. We have heard Sh.Amit, Advocate, vice counsel for the Appellant/Opposite Party No.1 and also carefully gone through the written submissions filed by Sh.O.C.Sharma, Advocate, counsel for the complainant. At the time of hearing final arguments, none appeared for the Opposite Party No.2. 5
Manager, Future Generali India Ins.Co. Ltd. Vs.Balak Ram & Anr. F.A. No.63/2019
11. The learned vice counsel for the appellant/opposite party No.1 has vehemently argued that the learned District Forum below fell in grave error in appreciating the terms and conditions of the policy and held that loss caused due to heavy rain fall was covered under the policy. According to him, in this case the complainant was issued Fire and Special Perils Policy which covered only special perils. The house of the complainant was damaged due to heavy rain fall which is not a specified peril under the policy, hence the opposite party No.1 is not liable to indemnify the complainant for the loss suffered by him.
12. Per contra, the learned counsel for the complainant in his written submissions has relied upon the decision of the Hon'ble National Commission in United India Insurance company Ltd.vs Imperial Gift House, CLT 2007(1) 351 and submitted that the loss caused by heavy rain fall was covered under the policy and the learned District Forum has rightly followed this decision and held that the loss of the complainant was covered under the policy.
13. In United India Insurance company Ltd.vs Imperial Gift House (supra), the Hon'ble National Commission has upheld the order of the State Commission vide which the Insurance company was held liable to indemnify the insured for the loss suffered by collapse of roof 6 Manager, Future Generali India Ins.Co. Ltd. Vs.Balak Ram & Anr. F.A. No.63/2019 due to heavy rain fall on the ground that heavy rain fall comes within the ambit of the meaning of flood. In the instant case, it is admitted case of the parties that the house of the complainant was damaged due to heavy rain fall on 25.12.2017. Therefore, the learned District Forum below has not committed any error by following this decision to hold that the loss suffered by the complainant was covered under the policy.
14. The next contention of the learned vice counsel for the appellant/opposite party No.1 is that the residential house of the complainant was insured but the house which was damaged was under construction. Therefore,the opposite party has no liability to indemnify the complainant for the loss cause to his under constriction house.
15. The complainant had taken loan from the opposite party No.2 for construction of house. The opposite party No.2 at the time of sanctioning the loan got the proposed house of the complainant insured to the extent of loan amount of Rs.10,00,000/- for the entire loan period from 17.06.2016 to 16.06.2026. Thus, the insurance cover has commenced immediately after the loan was sanctioned and before start of the construction of the house of the complainant. The opposite party No.1 was fully aware about this fact. In view of this, the opposite party No.1 is precluded from raising 7 Manager, Future Generali India Ins.Co. Ltd. Vs.Balak Ram & Anr. F.A. No.63/2019 objection that under the policy under construction house was not covered.
16. The next contention of the learned vice counsel for the appellant is that loss suffered by the complainant was on account of defective design or material used by him for construction of his house. This contention is based upon the observations made by the surveyor/investigator in his report after physical inspection of the spot. But the opposite party No.1 has not filed the affidavit of the surveyor/investigator to prove that on physical verification he has found that the loss suffered by the complainant was on account of defective design or material used by him for construction of his house. Moreover, this is not the ground taken by the opposite party in the letter of repudiation of the claim made by the complainant.
17. The next contention of the learned vice counsel for the appellant is that in this case there is considerable delay in giving intimation of the loss by the complainant to the opposite party No.1 which has not been properly explained by the complainant. In its reply the opposite party no.1 has pleaded that the intimation about this occurrence was received by it on 13.01.2017, but in his affidavit Sh.Vidula Kaushik, Legal Manager of the opposite party No.1 has only stated that the intimation was received after considerable delay. He remained silent about the date of receiving the 8 Manager, Future Generali India Ins.Co. Ltd. Vs.Balak Ram & Anr. F.A. No.63/2019 intimation. Thus, the testimony of Sh.Vudula Kaushik in this behalf is general and vague. The opposite party No.1 has also not placed on record any document containing the intimation which was sent to it by the complainant. In view of this, it cannot be held that there was considerable delay in giving intimation of this incident by the complainant to the opposite party. Even otherwise, in view of the judgment of the Hon'ble Supreme Court in the case of Om Prakesh vs Reliance Insurance Company, Civil Appeal No.15611 of 2017 decided on 04.10.2017 it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine.
18. The last contention of the learned vice counsel for the opposite Party No.1/appellant is that in case it is held that the opposite party no.1 is liable to indemnify the complainant for the loss suffered by him, in that case, the opposite party No.1 is only liable to pay a sum of Rs.3,51,000/- to him as assessed by the surveyor. The learned District forum below has wrongly rejected the deductions made by the surveyor on account of under insurance. The value of the house was assessed by the surveyor at Rs.14.32,500/-, whereas the insurance of the 9 Manager, Future Generali India Ins.Co. Ltd. Vs.Balak Ram & Anr. F.A. No.63/2019 house was to the tune of Rs.10,00,000/- which was under
valued to the extent of 30.19%.
19. The opposite party No.1 in its reply has specifically denied that the complainant had spent a sum of Rs.15 Lacs on construction of his house. The opposite party No.1 has also not filed the affidavit of the surveyor to testify as to how he has assessed the value of the house at Rs.14,32,500/-. Therefore, it cannot be held that the house of the complainant was under insured. Even otherwise, the complainant did not at his own insured the house in question, but the same was insured by the opposite party No.2 to the extent of the loan amount in order to secure its loan in pursuance of special arrangement with the opposite party No.1. The opposite party No.1 had never asked the complainant to declare the value of his house. In view of this, the opposite party No.1 cannot raise the plea of under insurance.
20. As a sequel to our above discussion, we hold that the impugned order dated 22.12.2018 passed by the learned District Forum, Solan, does not suffer from any legal infirmity and as such the instant appeal filed by the appellant/opposite party No.1 is devoid of any merit and is accordingly dismissed. The parties are, however, left to bear their own costs.
21. Certified copy of order be transmitted to parties free of costs strictly as per rules. Certified copy of order be 10 Manager, Future Generali India Ins.Co. Ltd. Vs.Balak Ram & Anr. F.A. No.63/2019 sent to learned District Forum for information forthwith. File of State Commission be consigned to record room after due completion. F.A.No.63/2019 is disposed of. Pending application(s) if any also disposed of.
Sunita Sharma Presiding Member R.K.Verma Judicial Member 03.05.2021 Manoj 11